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1962 Supp (3) SCR 235 : AIR 1962 SC 1052 : (1962) 2 Cri LJ 215

In the Supreme Court of India

(BEFORE P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N.
RAJAGOPALA AYYANGAR, JJ.)

1. IZHAR AHMAD KHAN (IN PETN. NO. 101 OF 59)

2. SYED ABRARUL HASSAN (IN PETN. NO. 136 OF 59) AND
3. HABIB HIDAYATULLAH (IN PETN. NO. 88 OF 61) … Petitioners;
Versus
UNION OF INDIA AND OTHERS (IN ALL THE THREE PETITIONS) …
Respondents.
Petitions Nos. 101 and 136 of 1959 and 88 of 1961* , decided on February 16,
1962
Advocates who appeared in this case :
Veda Vyasa, Senior Advocate (Naunit Lal, Advocate, with him), for the Petitioner (In
Petn. Nos. 101 and 136 of 59);
B.R.L. Iyengar and T.M. Sen, Advocates, for Respondent 1 (In Petn. No. 101 of 59);
Dipak Datta Choudhri and T.M. Sen, Advocates, for Respondent 1 (In Petn. No. 136
of 59);
B.K.B. Naidu and I.N. Shroff, Advocates, for Respondents 2 and 3 (In Petns. Nos.
101 and 136 of 59);
Daniel, A. Latifi and Sardar Bahadur, Advocates, for the Petitioner (In Petin. No. 88
of 61);
A.V. Viswanatha Sastri, Senior Advocate, (K.B. Mehta and R.H. Dhebar, Advocates,
with him), for Respondent 1 (In Petn. No. 88 of 61);
B.R.L. Iyengar and R.H. Dhebar, Advocates, for Respondent 2 (In Petn. No. 88 of
61).
The Judgment of the Court was delivered by
P.B. GAJENDRAGADKAR, J.— These three Writ Petitions are filed by the three
respective petitioners under Article 32 of the Constitution for the enforcement of their
fundamental right under Article 19(1)(e). They were heard separately but it would be
convenient to deal with them by one common judgment because they raise for our
decision the same constitutional questions. In all the petitions, the constitutional
validity of Section 9(2) of the Citizenship Act, 1955 (Act 57 of 1955) (hereinafter
called “the Act”) and of Rule 3 in Schedule III of the Citizenship Rules, 1956, is
challenged. It would also be convenient to set out briefly at the outset the material
facts on which the three petitions are based.
2. Izhar Ahmad Khan, the petitioner in Writ Petition No. 101 of 1959, claims to be a
citizen of India and was a resident of Bhopal. He was enrolled as a voter in the
Parliamentary as well as State Legislative Assembly Electoral Roll. On the 20th August,
1952, he was taken into custody by the police from the restaurant which he used to
run at Bhopal and was told that he had been arrested under an order from the then
Bhopal Government under Section 7 of the Influx from Pakistan (Central) Act. He was
then removed by train the very next day and left at the Pakistan border and was asked
to go to Pakistan despite his protests. Thereafter, his elder brother, Iqbal Ahmad
moved the Court of the Judicial Commissioner, Bhopal, under Article 226 of the
Constitution for the issue of a writ in the nature of habeas corpus. In February 1953,
the learned Judicial Commissioner pronounced his judgment in the said writ petition.
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He found in favour of the petitioner that he was born in India and was a citizen of
India. Even on the question of migration, the Judicial Commissioner made a finding in
his favour. He, however, observed that the petitioner was in Pakistan in May and June,
1952, and he came to the conclusion that since he had contravened the provisions of
Section 3 of the Influx from Pakistan (Central) Act, ho was liable to be removed
physically from India under Section 7 of the said Act.
3. Having gone to Pakistan much against his will, the petitioner tried to obtain the
help of the High Commissioner of India for returning to India but he failed and so he
had to sign an application form in order to secure a passport to come to India. With
the passport thus obtained he came back to India on the 13th August, 1953. Soon
after his return to India, he applied for permission to stay in India permanently and
his visa for stay in India was accordingly extended from time to time pending the final
decision of his application for leave to stay in India permanently. Meanwhile, on 15th
February 1954, Section 7 of the Influx Act was declared void by this Court. In
consequence, the petitioner began to press his application for permanent settlement in
India and a long term visa was granted to him by the Government of India pending
the decision of his application. Thereafter, the Act was passed in 1955 and under
advice, the petitioner applied for registration as a citizen. The said application was,
however, rejected and his application for leave to stay in India permanently met with
the same fate. The petitioner was then directed by the District Superintendent of
Police, Bhopal, to leave India within seven days by an order dated the 16th June,
1959, served on the petitioner. This order was passed under Section 3(2)(c) of the
Foreigners Act, 1946 (31 of 1946). It was against this order that the petitioner came
to this Court by his present writ petition on August 13, 1959. In the petition originally
filed by him, the petitioner's contention was that he was not a foreigner within the
meaning of the Foreigners Act and he challenged the validity of the relevant operative
sections of the said Act.
4. After notice was served on the Union of India, the State of Madhya Pradesh and
the District Superintendent of Police, Bhopal, who were impleaded as Respondents 1,
2 & 3 to the petition, the matter came on for hearing before this Court on January 22,
1960. After hearing counsel for some time, the Court delivered an interlocutory
judgment in which it pointed out that the crucial question which falls to be considered
in the writ petition is whether the petitioner is a citizen of India or not. This question
can be decided only under Section 9(2) of the Act. Therefore, this Court observed that
an enquiry should be made by an appropriate authority in that behalf and the result of
the enquiry intimated to this Court as early as possible. On receipt of the result of the
enquiry by this Court, the petition will be listed for final hearing. Meanwhile, stay of
deportation of the petitioner was continued.
5. In accordance with this interlocutory judgment, an enquiry was held under
Section 9(2) after serving a notice about the said enquiry on the petitioner. On
September 11, 1961, the Central Government recorded its conclusion that the
petitioner had voluntarily acquired the citizenship of Pakistan after January 26, 1960,
and before July 29, 1953. This conclusion was reached, substantially by the application
of the impugned R. No. 3.
6. After the enquiry had thus terminated and its result communicated to this Court,
the petitioner applied for permission to take additional grounds and amongst the
grounds which he thus wanted to raise, are the two questions which we have already
indicated. That, in brief, is the background of facts in Petition No. 101 of 1959.
7. Syed Abrarul Hassan, the petitioner in Petition No. 136 of 1959, claims to be a
citizen of India and was a resident of Bhopal. In 1951, his family received the news
from Pakistan that his elder brother Syed Hassan was seriously ill. That is why the
petitioner with his mother and younger sisters and one younger brother went to
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Pakistan. Thereafter, the petitioner stayed there for some years. Then they tried to
come back to India and with that object applied for a Pakistan passport to travel to
India and after the passport was thus obtained, he returned to India in May 1954.
After he came to India, he applied to the Government of India for permission to settle
down in India permanently and pending the said application, he was granted long
term visas. In 1959, however, the District Superintendent of Police, Bhopal, served an
order on him directing him to leave India by the 22nd August, 1959. This order was
issued under Section 3(2)(c) of the Foreigners Act. Like Petition No. 101 of 1959, this
petition also was originally filed to challenge the validity of the said order and to
impugn the validity of the relevant provisions of the Foreigners Act on the ground that
the petitioner was not a foreigner and that the relevant provisions could not be
invoked against him.
8. Subsequently, this petition as well as Petition No. 101 of 1959 were heard
together on January, 22, 1960, and the course of events in this petition was similar to
that in the earlier petition. The result was that after an enquiry was held under Section
9(2) of the Act and the petitioner was informed that the Central Government had
come to the conclusion that the petitioner had voluntarily acquired the citizenship of
Pakistan after January 26, 1950, and before November 20, 1952, he applied for leave
to take additional grounds, including the two grounds to which we have already
referred. Thus, the material facts in these two petitions are substantially similar.
9. Habib Hidayatullah, the petitioner in Petition No. 88 of 1961, claims to be a
citizen of India and complains that his fundamental rights under Article 19 of the
Constitution are being infringed because he is about to be deported out of India on the
ground that he has acquired the citizenship of Pakistan. It, appears that the petitioner
sailed from Bombay for Basra (Iraq) in April 1950, and stayed there for three years in
connection with business. Then he accompanied his brother to Karachi in May 1953,
for his treatment. On arrival at Karachi, the Pakistan authorities took away his Indian
travel documents. Then he tried to obtain the assistance of Indian High Commission
for returning to India but failed and so he applied for and obtained a Pakistani
passport on December 14, 1957. According to him, he obtained his passport with a
view to return to India. On returning to India with this passport, the petitioner made
several representations be the Indian authorities for his recognition as a citizen of
India and even tried to obtain registration as such. His efforts in that direction,
however, failed and so he stood the risk of being deported from India. That is how the
petitioner filed the present petition on February 20, 1961. By his petition, he claimed a
direction against the respondents the Union of India and the State of Maharashtra
restraining them from taking any steps to deport him from India.
10. While admitting the petition, this Court passed an order stating that it would be
open to the petitioner to move the Government under Section 9(2) of the Citizenship
Act or the Government to act suo motu in that behalf. After the petition was thus
admitted, the respondents entered appearance and opposed grant of stay on the
ground that the petitioner had ceased to be a citizen of India. The Government of
India, then took action under Section 9(2) of the Act and has held that the petitioner
has voluntarily acquired the citiizenship of Pakistan after 26th January, 1950, and
before 14th December, 1957. After this order was communicated to the petitioner, he
took additional grounds and amongst them, are the two points which have been
already indicated. It is in the background of these respective facts that the three
petitioners resist their deportation from India on the grounds that Section 9(2) of the
Act is ultra vires and that Rule 3 in Schedule III of the Citizenship Rules, 1956, is also
constitutionally invalid.
11. Before dealing with the points thus raised by the three petitions, it would be
useful to refer briefly to the relevant constitutional and statutory provisions. Part II of
the Constitution, consisting of Articles 5 to 11, deals with citizenship. Article 5
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provides that every person specified in clause (a), (b) and (c) shall be a citizen of
India. Article 6 lays down that notwithstanding anything contained in Article 5, a
person who has migrated to the territory of India from the territory now included in
Pakistan shall be deemed to be a citizen of India at the commencement of the
Constitution if he satisfies the tests prescribed by clauses (a) and (b). Under Article 7,
a person who has after the first day of March, 1947, migrated from the territory of
India to the territory now included in Pakistan shall not be deemed to be a citizen of
India, notwithstanding anything contained in Articles 5 and 6. This Article is subject to
the proviso to which it is unnecessary to refer. Article 8 deals with the rights of
citizenship of a person who or either of whose parents or any of whose grand parents
were born in India as defined in the Government of India Act, 1935, and who
ordinarily resides in any country outside India as so defined. The next three articles
are important. Article 9 provides that no person shall be a citizen of India by virtue of
Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he
has voluntarily acquired the citizenship of any foreign State. In other words, if prior to
the commencement of the Constitution, a person had voluntarily acquired the
citizenship of any Foreign State, he is not entitled to claim the citizenship of India by
virtue of Article 5 or Article 6 or Article 8. This article thus deals with cases where
citizenship of a foreign State had been acquired by an Indian citizen prior to the
commencement of the Constitution. Article 10 guarantees the continuance of the
rights of citizenship and provides that every person who is or is deemed to be a citizen
of India under any of the foregoing provisions of Part II shall continue to be such
citizen; but this guarantee is subject to the important condition that it would be
governed by the provisions of any law that may be made by Parliament. The proviso
introduced by Article 10, therefore, makes it clear that any law made by Parliament
may affect the continuance of the rights of citizenship subject to its terms. That takes
us to Article 11 which empowers the Parliament to regulate the right of citizenship by
law. It provides that nothing in the foregoing provisions of Part II shall derogate from
the power of Parliament to make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship. It would thus
be noticed that while making provisions for recognising the right of citizenship in the
individuals as indicated by the respective articles, and while guaranteeing the
continuance of the said rights of citizenship as specified by Article 10, Article 11
confers and recognises the power of the Parliament to make any provision with respect
to not only acquisition but also the termination of citizenship as well as all matters
relating to citizenship. Thus, it would be open to the Parliament to affect the rights of
citizenship and the provisions made by the Parliamentary statute in that behalf cannot
be impeached on the ground that they are inconsistent with the provisions contained
in Articles 5 to 10 of Part II. In this connection, it is important to bear in mind that
Article 11 has been included in Part II in order to make it clear that the sovereign right
of the Parliament to deal with citizenship and all questions connected with it is not
impaired by the rest of the provisions of the said Part. Therefore, the sovereign
legislative competence of the Parliament to deal with the topic of citizenship which is a
part of Entry 17 in List I of the Seventh Schedule is very wide and not fettered by the
provisions of Articles 5 to 10 of Part II of the Constitution. This aspect of the matter
may have relevance in dealing with the contention raised by the petitioners that their
rights under Article 19 are affected by the impugned provisions of Section 9(2) of the
Act.
12. In exercise of its legislative authority conferred by Entry 17 and in pursuance of
the provisions of the Article 11 of Part II, the Parliament passed the Act which came
into force on December 30, 1955. As its preamble shows, it has been passed to
provide for the acquisition and termination of the Indian citizenship. Acquisition of
citizenship is provided for by Sections 3 to 7. Section 3 deals with acquisition of
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citizenship by birth, Section 4 with acquisition by descent, Section 5 with acquisition
by registration, Section 6 with acquisition by naturalisation and Section 7 with
acquisition by incorporation of territory. Having dealt with the acquisition of citizenship
by these five sections termination of citizenship is dealt with by Section 8, 9 and 10.
Section 8 deals with renunciation of citizenship, Section 9 with the termination of
citizenship and Section 10 with its deprivation. We are concerned with Section 9 which
deals with the termination of citizenship. This Section provides:
“(1) Any citizen of India who by naturalisation, registration or otherwise
voluntarily acquires, or has at any time between 26th January, 1950 and the
commencement of this Act voluntarily acquired, the citizenship of another country,
shall, upon such acquisition or, as the case may be, such commencement, cease to
be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who,
during any war in which India may be engaged, voluntarily acquires the
citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or how any person has acquired
the citizenship of another country, it shall be determined by such authority, in such
manner, and having regard to such rules of evidence, as may be prescribed in this
behalf.”
There is no ambiguity about the effect of this Section. It is clear that the voluntary
acquisition by an Indian citizen of the citizenship of another country terminates his
citizenship of India, provided the said voluntary acquisition has taken place between
26th January, 1950 and the commencement of the Act or takes place thereafter. It
would thus be seen that whereas Article 9 of the Constitution dealt with the
acquisition of citizenship of a foreign State which had taken place prior to the
commencement of the Constitution, Section 9 of the Act deals with acquisition of
foreign citizenship subsequent to the commencement of the Constitution. There is,
therefore, no doubt that the Constitution does not favour plural or dual citizenship and
just as in regard to the period prior to the Constitution, Article 9 prevents a person
who had voluntarily acquired the citizenship of foreign country from claiming the
status of an Indian citizen, so does Section 9(1) make a similar provision in regard to
the period subsequent to the commencement of the Constitution. Section 9 provides
that the acquisition of foreign citizenship can be the result either of naturalisation or
registration or any other method of voluntarily acquiring such citizenship. Just as the
citizenship of India can be acquired by naturalisation, or registration, so can the
citizenship of a foreign country be similarly acquired by naturalisation or registration.
If it is shown that the person has acquired foreign citizenship either by naturalisation
or registration, there can be no doubt that he ceases to be a citizen of India in
consequence of such naturalisation or registration. These two classes of acquisition of
foreign citizenship present no difficulty. It is only in regard to the last category of
cases where foreign citizenship is acquired otherwise than by naturalisation or
registration that difficulty may arise. But the position in respect of the last category of
cases is also not in doubt and that is that if it is shown that by some other procedure
foreign citizenship has been voluntarily acquired, Indian citizenship immediately
comes to an end. The proviso to sub-section (1) need not detain us because we are
not concerned with the cases falling under that proviso.
13. That takes us to sub-clause (2) of Section 9. This clause provides that if any
question arises as to the acquisition by an Indian citizen of foreign citizenship, it shall
be determined by such authority, in such manner, and having regard to such rules of
evidence, as may be prescribed in this behalf. In other words, if any dispute arises as
to whether foreign citizenship has been acquired voluntarily by an Indian citizen, or if
it has been so acquired, when or how, the power to decide this question has been
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delegated to the authority as may be prescribed in that behalf. Likewise, the manner
in which the enquiry should be held and the rules subject to which the enquiry should
be held, have also to be prescribed in that behalf. The result of this sub-section is that
rules are to be framed prescribing the authority by which the said questions should be
tried, the manner in which they should be tried and the rules of evidence subject to
which they should be tried.
14. Section 18(1) provides that the said power to make rules may be exercised to
carry out the purposes of the Act, and sub-section (2) provides that in particular and
without prejudice to the generality of the foregoing power, the rules may provide for
the topics covered by clauses (a) to (k) of the said sub-section. Section 18(3)
authorises the Central Government to provide that a breach of any rule shall be
punishable with fine which may extend to one thousand rupees and Section 18(4)
requires that all the rules made under the said Sectionshall, as soon as may be after
they are made, be laid for not less than 14 days before both Houses of Parliament and
shall be subject to such modifications as Parliament may make during the session in
which they are so laid. This rule is intended to enable the Parliament to exercise
control over the rules made by the Central Government in pursuance of its delegated
authority.
15. In 1956, the Central Government purported to make Rules in exercise of the
powers conferred upon it by Section 18 of the Act. We are concerned with Rule 30 in
the present case. It prescribes the authority to determine acquisition of citizenship of
another country. 30(1) provides that if any question arises as to whether, when or how
any person has acquired the citizenship of another country, the authority to determine
such question shall, for the purposes of Section 9(2), be the Central Government. Sub
-rule (2) provides that the Central Government shall in determining any such question
have due regard to the rules of evidence specified in Schedule III.
16. That takes us to Schedule III which prescribed the rules of evidence under
which the enquiry under Section 9(2) would be held. Under Rule 1, it is provided that
if it appears to the Central Government that a citizen of India has voluntarily acquired
the citizenship of any other country, it may require proof within the specified time that
he has not so acquired the citizenship of that country; and the burden of proving this
shall be upon him. Under Rule 2, the Central Government is empowered to make a
reference in respect of any question, which it has to decide in the enquiry, to its
Embassy in the country concerned or to the Government of the said country and it
authorises the Central Government to act on any report or information received in
pursuance of such reference. Then follows Rule 3 the validity of which is challenged
before us. This rule reads thus:
“The fact that a citizen of India has obtained on any date a passport from the
Government of any other country shall be conclusive proof of his having voluntarily
acquired the citizenship of the country before that date.”
To the rest of the rules it is unnecessary to refer. The scope and effect of Rule 3 are
absolutely clear. If it is shown that a citizen of India has obtained a passport from a
foreign Government on any date, then under Rule 3 an inference has to be drawn that
by obtaining the said passport he has voluntarily acquired the citizenship of that
country before the date of the passport. In other words, the proof of the fact that a
passport from a foreign country has been obtained on a certain date conclusively
determines the other fact that before that date, he has voluntarily acquired the
citizenship of that country. The question which arises for decision is whether this rule
is constitutionally valid and if it is, whether Section 9(2) under which the power to
hold the enquiry subject to the relevant rules, has been delegated to the Central
Government is itself constitutionally valid.
17. We will first deal with the challenge to the validity of Rule 3. The principal
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ground on which the validity of Rule 3 is challenged is that whereas Section 9(2)
authorises the Central Government to prescribe rules of evidence subject to which the
relevant enquiry should be held, what the Central Government has purported to do in
framing Rule 3 is to prescribe a rule of substantive law. The argument is that when
Section 9(2) refers to rules of evidence, it refers obviously to rules of evidence
properly so-called and since the impugned rule is, in substance, not a rule of evidence
but a rule of substantive law, it is outside the purview of the delegated authority
conferred by Section 9(2) and as such, is invalid. It is true that Section 18(1) confers
on the Central Government power to make rules to carry out the purposes of the said
Act, but this general power to make rules will not take within its scope the power to
make a rule of substantive law and so if the impugned rule is a rule of substantive law
and if the expression “rules of evidence” in Section 9(2) does not include such a rule,
then clearly the challenge to the validity of the rule will have to be upheld.
18. In appreciating the merits of this argument, it is essential to bear in mind the
genesis of the law of evidence and the function which its enactment is intended to
discharge. The division of law into two broad categories of substantive law and
procedural law is well known. Broadly stated, whereas substantive law defines and
provides for rights, duties and liabilities, it is the function of the procedural law to deal
with the application of substantive law to particular cases and it goes without saying
that the law of evidence is a part of the law of procedure. The law of evidence deals
with the question as to what facts may, and what may not, be proved, what sort of
evidence may or may not be given and by whom and in what manner such evidence
may or may not be given. Consistently, with the broad functions of the law of
evidence, the Indian Evidence Act also deals with the topics that usually fall within the
purview of such law. It prescribes the rules of relevance, it provides for the exclusion
of some evidence, as for instance, exclusion of hearsay evidence or of parole evidence
in some cases; it deals with onus of proof, with the competence of witnesses, with
documentary evidence and its proof, with presumptions and with estoppel. “Evidence”,
observes Best1 , “has been well defined as any matter of fact, the effect, tendency, or
design of which is to produce in the mind a persuasion, affirmative or disaffirmative of
the existence of some other matter of fact”. Judicial evidence with which the Evidence
Act deals is a species of the genus “evidence”, and, according to Best, is for the most
part nothing more than natural evidence, restrained or modified by rules of positive
law. The statutory provisions contained in the Law of Evidence may be said to be
based on the doctrine that that system of law is best which leaves least to the Judges'
discretion. That is why “the laws of every well-governed State have established rules
regulating the quality, and occasionally the quantity, of the evidence necessary to
form the basis of judicial decision”. It is in its attempt to regulate the production of
and proof by evidence in a judicial enquiry that the rules of evidence refer to certain
presumptions either rebuttable or irrebuttable. The term “presumption” in its largest
and most comprehensive signification, may be defined to be an inference, affirmative
or disaffirmative of the truth of falsehood of a doubtful fact or proposition drawn by a
process of probable reasoning from something proved or taken for granted. Thus,
according to Best, when the rules of evidence provide for the raising of a rebuttable or
irrebuttable presumption, they are merely attempting to assist the judicial mind in the
matter of weighing the probative or persuasive force of certain facts proved in relation
to other facts presumed or inferred. The whole scheme of the Evidence Act is thus
intended to serve the objective of regulating the proof of facts by subjecting the
production of evidence to the rules prescribed in that behalf. It is in the light of this
function and objective of the Evidence Act that the argument of the petitioners has to
be judged.
19. It has been strenuously urged before us that when the impugned rule makes it
obligatory on the enquiring authority to infer the acquisition of citizenship of foreign
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country from the fact that the passport of foreign country has been obtained by an
Indian citizen, it is really not a rule of evidence properly so-called but is a part of the
rule of substantive law in relation to the acquisition or termination of citizenship. In
support of this argument, opinions of jurists have been pressed into service. We must,
therefore, briefly refer to the said opinions and decide whether they lead to the
conclusion for which the petitioners contend. Holds worth observes that “the difficulty
of proving the facts needed to establish legal liability under the older modes of trial,
the slow growth of our modern mode of trial, the same difficulties even under our
modern procedure, and sometimes the wish to modify an inconvenient law, have all at
different periods led both legislators and courts to adopt the expedient of inventing a
presumption of law which is sometimes rebuttable and sometimes irrebuttable. These
rebuttable presumptions of law no doubt belong primarily to those particular branches
of the substantive law with which they are concerned; but they are all connected with
that part of the adjective law which is concerned with evidence; for they direct the
court to deduce particular inferences from particular facts till the contrary is proved.
Irrebuttable presumptions of law, on the other hand, belong at the present day more
properly to the substantive law than to the law of evidence2 . Holdsworth then draws a
discrimination between estoppel which is a rule of evidence and irrebuttable
presumption by observing that “while an irrebuttable presumption is in effect a rule of
substantive law, to the effect that when certain facts exist a particular inference shall
be drawn, an estoppel is a rule of evidence that when, as between two parties to a
litigation, certain facts are proved, no evidence to combat those facts can be received”.
Thus, according to Holdsworth, irrebuttable presumptions are always a matter of
substantive law, not so rebuttable presumptions, and estoppel is a rule of evidence
and not a rule of substantive law.
20. Wigmore expresses the same opinion about the character of irrebuttable
presumptions, for he says that wherever from one fact another is said to be
conclusively presumed, in the sense that the opponent is absolutely precluded from
showing by any evidence that the second fact does not exist, the rule is really
providing that, where the first fact is shown to exist, the second fact's existence is
wholly immaterial for the purpose of the proponent's case; and to provide this is to
make a rule of substantive law, and not a rule apportioning the burden of persuading
as to certain propositions or varying the duty of coming forward with evidence3 . “With
respect, it is doubtful whether it is correct to say that in drawing a conclusive
presumption from one fact proved about the existence of another fact, the rule renders
the second fact's existence wholly immaterial. What the rule provides is that the
probative or persuasive value of the proved fact in relation to the fact not proved is so
great that the fact not proved should always be taken to be proved once the other fact
is proved. In any case, the opinion of Wigmore is in favour of the contentions raised by
the petitioners.
21. Phipson puts the proposition in somewhat guarded and qualified terms “In
many cases”, he observes, “these so called conclusive presumptions are rules which
belong, properly speaking, to the various branches of substantive law and not to the
law of evidence, such as the presumption that an infant under seven is incapable of
committing a felony, or that all men know the law (i.e., that ignorance of the law is no
excuse for crime).”4 It would thus be noticed that according to Phipson, it is not true
as a general inflexible rule that all conclusive presumptions pertain to the branch of
substantive law and he has illustrated his statement by taking two instances of
conclusive presumptions to show that the said presumptions are really matters of
substantive law. Therefore, if the test laid down by Phipson is reliable, then the
question as to whether a conclusive presumption in a given case is a part of the
substantive law or forms a part of the rule of evidence, properly so-called, will have to
be decided in the light of the content of the rule and its implications.
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22. Stephen also has considered this problem. “Conclusive presumptions”, he says,
“appear to me to belong to different branches of the Substantive Law, and to be
unintelligible, except in connection with them. Take for instance the presumption that
every one knows the law. The rule cannot be properly appreciated if it is treated as a
part of the Law of Evidence. It belongs to the Criminal law. In the same way,
numerous presumptions as to rights of property (in particular easements and
incorporeal hereditaments) belong not to the Law of Evidence but to the Law of Real
Property”. Having said so, the learned author adds that “the only presumptions which,
in my opinion, ought to find a place in the Law of Evidence, are those which relate to
facts merely as facts, and apart from the particular rights which they constitute5 ”. That
is how in his Digest, he has included certain presumptions under Articles 98 to 105.
These are respectively, presumption of legitimacy, presumption of death from seven
years' absence, presumption of lost grant, presumption of regularity and of deeds to
complete title, estoppel by conduct, estoppel of tenant and licensee, estoppel of
acceptor of bill of exchange, and estoppel of bailee, agent and licensee. It would thus
be seen that estoppel of the four kinds just indicated constitutes a branch of rule of
evidence, according to Stephen.
23. Dicey seems to take the view that even for the purposes of domestic law,
irrebuttable presumptions of law are rules of substance, and he adds that rebuttable
presumptions of law must, for the present purpose, be further subdivided. First, there
are those which only apply in certain contexts, such as the presumptions of
advancement, satisfaction and ademption. It is submitted that these are so closely
connected with the existence of substantive rights that they ought to be classified as
rules of substance. Secondly, there are those which apply (though not always in
precisely the same way) to all types of cases, such as the presumptions of legitimacy,
marriage and death. It is uncertain whether such presumptions are rules of substance
or rules of procedure.”6 According to Dicey, for the purposes of English domestic law,
estoppel is generally treated as a rule of evidence. In dealing with this topic, Dicey has
observed that: “in order to determine whether presumptions are rules of substance or
rules of procedure, it is necessary to distinguish between three kinds of
presumptions.”6 Then he refers to presumptions of fact, rebuttable presumptions of
law and irrebuttable presumptions of law. As to presumptions of fact, he thinks that,
strictly speaking, they have no legal effect at all; they are merely common inferences
and, as such, will be applied alike to cases governed by English and foreign law.
24. It is no doubt true that in dealing with the question about the character of the
rule prescribing irrebuttable presumptions, we must attach due importance to the
opinions expressed by jurists. But, as we have just seen, the views expressed by
jurists on this topic do not disclose an identity of approach and their conclusions show
different shades of opinion. That is why, bearing in mind the juristic opinion to which
we have just referred, we will proceed to examine the merits of the argument that the
rule of irrebuttable presumption prescribed by the impugned rule is a part of the
substantive law and does not form part of the law of evidence properly so-called.
25. It is conceded, and we think, rightly, that a rule prescribing a rebuttable
presumption is a rule of evidence. It is necessary to analyse what the rule about the
rebuttable presumption really means. A fact A which has relevance in the proof of fact
B and inherently has some degree of probative or persuasive value in that behalf may
be weighed by a judicial mind after it is proved and before a conclusion is reached as
to whether fact B is proved or not. When the law of evidence makes a rule providing
for a rebuttable presumption that on proof of fact A, fact B shall be deemed to be
proved unless the contrary is established, what the rule purports to do is to regulate
the judicial process of appreciating evidence and to provide that the said appreciation
will draw the inference from the proof of fact A that fact B has also been proved unless
the contrary is established. In other words, the rule takes away judicial discretion
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either to attach the due probative value to fact A or not and requires prima facie the
due probative value to be attached in the matter of the inference as to the existence of
fact B, subject, of course, to the said presumption being rebutted by proof to the
contrary. As Thayer has observed: “presumptions are aids to reasoning argumentation,
which assume the truth of certain matters for the purpose of some given inquiry. The
exact scope and operation of these prima facie assumptions are to cast upon the party
against whom they operate, the duty of going forward, in argument or evidence, on
the particular point to which they relate. They are thus closely related to the subject of
judicial notice; for they furnish the basis of many of these spontaneous recognitions of
particular facts or conditions which make up that doctrine”7 . According to the same
author, legal presumptions of the rebittable kind are definitions of the quantity of
evidence or the state of facts sufficient to make out a prima facie case; in other words,
of the circumstances under which the burden of proof lies on the opposite party. Thus,
the rule of rebuttable presumption adds statutory force to the natural and inherent
probative value of fact A in relation to the proof of the existence of fact B and in
adding his statutory value to the probative force of fact A, the rule, it is conceded,
makes a provision within the scope and function of the law of evidence. If that is so,
how does it make a difference in principle if the rule adds conclusive strength to the
probative value of the said fact A in relation to the proof of the existence of fact B? In
regard to the category of facts in respect of which an irrebuttable presumption is
prescribed by a rule of evidence, the position is that the inherent probative value of
fact A in that behalf is very great and it is very likely that when it is proved in a
judicial proceeding, the judicial mind would normally attach great importance to it in
relation to the proof of fact B. The rule steps in with regard to such facts and provides
that the judicial mind should attach to the said fact conclusiveness in the matter of its
probative value. It would be noticed that as in the case of a rebuttable presumption,
so in the case of an irrebuttable presumption, the rule purports to assist the judicial
mind in appreciating the existence of facts. In one case the probative value is
statutorily strengthened but yet left open to rebuttal, in the other case, it is statutorily
strengthened and placed beyond the pale of rebuttal. Considered from this point of
view, it seems rather difficult to accept the theory that whereas a rebuttable
presumption is within the domain of the law of evidence, irrebuttable presumption is
outside the domain of that law and forms part of the substantive law.
26. In D.B. Heiner v. John H. Donnan8 the Supreme Court of the United States of
America had occasion to consider the validity of the provision of a Federal statute
imposing a death transfer tax in respect to transfers at the time of or in contemplation
of death, that any transfer made within two years prior to the death of decedent shall
be deemed to have been made in contemplation of death within the meaning of the
statute and it was held that the said provision violated the due process clause of the
5th Amendment. The argument partly turned upon the question as to whether the
irrebuttable presumption authorised to be drawn by the impugned section of statute
was a part of the law of evidence or of the substantive law. In support of the statute, it
was urged that the conclusive presumption created by the statute was a rule of
substantive law. The Court, however, rejected the plea and held that the rule was a
rule of evidence and as such, violated the constitutional guarantee provided by the 5th
Amendment. In rejecting the plea urged by the State that the rule was a rule of
substantive law, Mr Justice Sutherland observed that a rebuttuble presumption clearly
is a rule of evidence which has the effect of shifting the burden of proof and in support
of this conclusion, he referred to the earlier decisions of the Court. The learned Judge
then added that “it is hard to see how a statutory rebuttable presumption is turned
from a rule of evidence into a rule of substantive law as the result of a later statute
making it conclusive. In both cases it is a substitute for proof; in the one open to
challenge and disproof and in the other conclusive”. We ought to add that the learned
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Judge made it clear that “whether the presumption be treated as a rule of evidence or
of substantive law, it constitutes an attempt, by legislative fiat, to enact into existence
a fact which here does not, and cannot be made to, exist in actuality, and the result is
the same, unless we are ready to over-rule the Schlesinger Case, as we are not; for
that case dealt with a conclusive presumption and the Court held it invalid without
regard to the question of its technical characterization”. Thus, the observations made
by Mr Justice Sutherland in regard to the character of the rule of irrebuttable
presumption afford assistance to the contention raised before us on behalf of the Union
of India.
27. But it is said that a conclusive presumption prevents the party against whom it
is drawn from disproving the inference about the existence of fact B which is required
to be drawn from the proof of fact A. This circumstance, however, does not affect the
character of the rule as falling within the domain of the law of evidence. Take the case
of estoppel which is admitted to be a part of the law of evidence. In the case of
estoppel where the essential ingredients of the rule are satisfied, a party is precluded
from denying the truth of the thing covered by his declaration, act or omission. In
other words, where estoppel is pleaded against a party on the strength of his
declaration, act or omission, whereby he intentionally caused or permitted another
person to believe a thing to be true, that party is not permitted to say that the thing
itself was not true and yet the rule which puts this bar against the party and precludes
him from proving that the thing in question is untrue, is treated as a rule of evidence.
Therefore, the fact that a bar is created preventing a party from proving the truth or
falsity of a thing the existence of which is inferred, does not show that the rule itself is
a part of the substantive law.
28. Then it is argued that the conclusive rule in the present case extinguishes the
status of citizenship and as such, is a part of the rule of substantive law. We are not
impressed by this argument either. What the rule really provides is that when one fact
is established, another fact shall be deemed to have been established. The fact
established is that an Indian citizen has obtained passport from a foreign Government
on a certain date. From this fact, an irrebuttable presumption is required to be drawn
that the obtaining of the passport from the foreign Government establishes the
acquisition of the citizenship of the said foreign State. This is a case where from the
proof of fact A an inference as to the existence of fact B is required to be drawn. As to
the inherent probative and persuasive value of fact A in relation to the existence of
fact B in this context, we will have occasion to discuss it later on. The argument that
the application of the rule may in some hypothetical cases conceivably lead to
hardship and injustice, is not relevant or material in dealing with the constitutional
validity of the rule.
29. In deciding the question as to whether a rule about irrebuttable presumption is
a rule of evidence or not, it seems to us that the proper approach to adopt would be to
consider whether fact A from the proof of which a presumption is required to be drawn
about the existence of fact B, is inherently relevant in the matter of proving fact B and
has inherently any probative or persuasive value in that behalf or not. If fact A is
inherently relevant in proving the existence of fact B and to any rational mind it would
bear a probative or persuasive value in the matter of proving the existence of fact B,
then a rule prescribing either a rebuttable presumption or an irrebuttable presumption
in that behalf would be a rule of evidence. On the other hand, if fact A is inherently not
relevant in proving the existence of fact B or has no probative value in that behalf and
yet a rule is made prescribing for a rebutable or an irrebuttable presumption in that
connection, that rule would be a rule of substantive law and not a rule of evidence.
Therefore, in dealing with the question as to whether a given rule prescribing a
conclusive presumption is a rule of evidence or not, we cannot adopt the view that all
rules prescribing irrebuttable presumptions are rules of substantive law. We can
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answer the question only after examining the rule and its impact on the proof of facts
A and B. If this is the proper test, it would become necessary to enquire whether
obtaining a passport from a foreign Government is or is not inherently relevant in
proving the voluntary acquisition of the citizenship of that foreign State.
30. It has been fairly conceded before us that a passport obtained by the
petitioners from the Pakistan Government would undoubtedly be relevant in deciding
the question an to whether by obtaining the said passport they have or have not
acquired the citizenship of Pakistan. Sometimes the argument appears to have been
urged and accepted that a passport in question would not be relevant to the enquiry
as to whether citizenship of Pakistan has been acquired or not. That view, in our
opinion, is clearly erroneous.
31. The definition of a passport given by Lord Alverstone, C.J., in R. v. Brailsford9
has been adopted by the House of Lords in the Joyce case10 and it is of some
assistance in dealing with the point with which we are concerned. “It is a document”,
says Lord Alverstone, “issued in the name of the Sovereign on the responsibility of a
Minister of the Crown to a named individual, intended to be presented to the
Governments of foreign nations and to be used for that individual's protection as a
British subject in foreign countries”. As P. Weis observes: “a passport is considered in
Great Britain and the United State to prima facie evidence of the national status of the
holder, but it is not conclusive evidence”. He adds that “the United States has on
many occasions insisted that foreign authorities were not entitled to ignore an
American passport i.e. to refuse to regard it as sufficient proof of the holder's
nationality”11 .
32. It appears that in support of the view that a passport is not relevant in an
enquiry as to the citizenship of a person holding a passport, reliance is sometimes
placed on the observations made by Mr Justice Thompson in Domingo Urtetiqui v. John
N. D'arcy, Henry Didier and Domingo D'Arbel12 “Upon the general and abstract
question”, observes Thompson, J., in delivering the decision of the Supreme Court of
the United States, “whether the passport per se, was legal and competent evidence of
the fact of citizenship, we are of the opinion that it was not”. It would, however, be
seen on looking at the whole of the judgment that the learned Judge made it perfectly
clear during the course of the latter portion of his judgment that on that issue, the
court was divided in opinion, and the point was of course, undecided. So, the general
observation made in the earlier part of the judgment is really of no assistance in the
matter. That case shows that the plaintiff had produced a passport granted by the
Secretary of State of the United States, in order to show that he was the citizen of the
State of Maryland. The defendant, on the other hand, offered in evidence the record of
the District Court of the United States for the District of Louisiana which contained
proceedings in a suit which had been originally instituted against the plaintiff to the
effect that he was an alien and it appears that of the two pieces of evidence, the latter
was held to be more reliable. Therefore, in our opinion, the learned counsel for the
petitioners were quite right in conceding that the passports obtained by the petitioners
were relevant in the enquiry as to the question whether they had acquired the
citizenship of Pakistan or not. If that be so, applying the fact which, we think, is
appropriate in such cases, it must be held that the impugned rule is a rule of evidence
and not a rule of substantive law. The fact of obtaining the passport from Pakistan on
which a conclusive presumption is drawn as to the voluntary acquisition of the
citizenship of Pakistan is relevant and the rule merely makes its probative value
conclusive. Therefore, we are not disposed to uphold the objection raised by the
petitioners that the impugned rule is a rule of substantive law and as such, falls
outside the purview of Section 9(2). If it is a rule of evidence properly so-called, it
would be within the scope of the authority conferred on the Central Government by
Section 9(2) and its validity cannot be successfully challenged.
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33. There is one decision to which we ought to refer before we part with this topic.
The petitioners in support of their argument that the impugned rule is a rule of
substantive law, have placed reliance on the decision in In re COHN13 . In that case, a
mother and a daughter, who were German nationals and at all times domiciled in
Germany, were killed in an air raid in London as a result of the same explosion, and it
could not be proved which of them had died earlier. The daughter was entitled to
movable property under her mother's will, if she survived her mother. On these facts,
it was held that the question of survivorship depended on the provision of the German
Civil Code under which the deaths were presumed to have taken place simultaneously
and so she was not a person living at the time when the succession to her mother's
estate opened and, therefore, was not entitled to the property. The provision contained
in Section 184 of the English Law of Property Act, 1925, however, was to the contrary.
It provided that where two or more persons have died in circumstances rendering it
uncertain which of them survived the other or others, such deaths shall, (subject to
any order of the Court) for all purposes affecting the title to the property, be presumed
to have occurred in order of seniority, and accordingly the younger shall be deemed to
have survived the elder. It was held that the two relevant statutory provisions both of
English and German Law were rules of substantive law. In fact, the relevant English
Section occurred in the Law of Property Act and its setting and context import that it
was a rule of substantive law. So was the rule contained in Article 20 of the Civil Code
of Germany treated as a rule of substantive law. The main reason given in support of
the conclusion that the two rules were rules of substantive law appears to be that each
one directed a certain presumption to be made in all cases affecting the title to
property. It would be noticed that the scope, purport and effect of the two rules is
substantially different from the scope, purport and effect of the rule with which we are
concerned. In the rules with which the court was concerned in re COHN, there is no
question about the probative value of one fact being judged or appreciated under
statutory rule in regard to the proof of the existence of another fact. Like the rule that
ignorance of law is no excuse, the rules with which the court was concerned were
clearly rules of substantive law. Therefore, in our opinion, not much assistance can be
drawn from the judgment of Uthwatt, J., in the case of re COHN. It is clear that the
simultaneous deaths of two persons is neither rationally or inherently relevant to, nor
has it any inherent probative value in, the proof of the question as to the sequence of
the two deaths and, therefore, the provisions in the two sections being purely
arbitrary, were rightly held to be matters of substantive law.
34. In dealing with this question, it may also be relevant to consider the practical
aspect of the rule; and that takes us to the procedure which has to be followed in
Pakistan in obtaining a passport from the Government of that country for travel to
India. One of the objects which the Act was incidentally intended to achieve was to
meet the emergency which arose as a result of the partition of the country into India
and Pakistan, and the relevant rules are also primarily applicable to Indian nationals
who on going to Pakistan obtained passport from the Government of that country.
Now, it is not disputed that according to the laws prevailing in Pakistan, a person is
not entitled to apply for or obtain a passport unless he is a citizen of Pakistan under its
Citizenship Act. Besides, the prescribed form of the application requires that the
applicant should make a declaration to the effect that he is a citizen of Pakistan and
the said declaration has to be accepted by the Pakistan authorities before a passport is
issued. In the course of the enquiry as to the citizenship of the applicant, declaration
by officials of Pakistan about the truth of the statement of the applicant are also
required to be filed. Thus, the procedure prescribed by the relevant Pakistan laws
makes it abundantly clear that the application for the passport has to be made by a
citizen of Pakistan, it has to contain a declaration to that effect and the truth of the
declaration has to be established to the satisfaction of the Pakistan officials before a
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passport is granted. When a passport is obtained under these circumstances, so far as
the Pakistan Government is concerned, there can be no doubt that it would be entitled
to claim the applicant as its own citizen. The citizen would be estopped from claiming
against the Pakistan Government that the statement made by him about his status
was untrue. In such a case, if the impugned rule prescribes that the obtaining of a
passport from the Pakistan Government by an Indian national, (which normally would
be the result of the prescribed application voluntarily made by him) conclusively
proves the voluntary acquisition of Pakistani citizenship, it would be difficult to hold
that the rule is not a rule of evidence. In our opinion, it would be pedantic and wholly
unrealistic to contend that the rule in question does not purport to assess the
probative value of fact A in the matter of proving fact B but imports considerations
which are relevant to substantive law. Our conclusion, therefore, is that the impugned
rule is a rule of evidence and falls within the scope prescribed by Section 9(2). The
challenge to its validity on the ground that it is a rule of substantive law must,
therefore, fail.
35. But quite apart from this theoretical or jurisprudential aspect of the matter,
there is another independent consideration which supports the same conclusion. The
question raised before us is one of construing the words “rules of evidence” used in
Section 9(2) of the Act, and in construing the said words, it would obviously be
necessary to bear in mind the legislative history of the content of the words “rules of
evidence” in India. The Evidence Act (Act 1 of 1872) was passed as early as 1872 and
by Section 4 it recognised as rules of evidence the rules which prescribe for a
presumption which may be drawn, for a presumption which shall be drawn subject to
rebuttal and for a presumption which shall be conclusively drawn. Sections 41, 112
and 113 are illustrations of conclusive presumptions. It will be recalled that similar
provisions were included by Stephen in his draft of the Law of Evidence after
expressing the opinion that the said presumptions form part of the Law of Evidence.
Therefore, from 1872 onwards, it has been accepted in India that a conclusive
presumption is a part of the law of evidence.
36. Bearing this fact in mind, we have to consider what the denotation of the
expression “evidence” would be in the relevant entries to the Seventh Schedule in the
Government of India Act of 1935 as well as the Constitution. Entry 5 in List III of the
Seventh Schedule of the earlier Act was: “Evidence and oaths; recognition of laws,
public acts and records and judicial proceedings”. Similarly, Entry 12 in the Concurrent
List of the 7th Schedule to the Constitution reads in the same way. It is well settled
that “when a power is conferred to legislate on a particular topic, it is important in
determining the scope of the power to have regard to what is ordinarily treated as
embraced within that topic in legislative practice and particularly in the legislative
practice of the State which has conferred the power14 .”(Croft v. Dunphy). A relevant
instance in point of this rule of construction is afforded by the decision of the Federal
Court in The Central Provinces and Berar Act 14 of 193815 . Dealing with the content of
the expression “excise”, Gwyer, C.J., observed:
“Parliament must surely be presumed to have had Indian legislative practice in
mind and, unless the context otherwise clearly requires, not to have conferred a
legislative power intended to be interpreted in a sense not understood by those to
whom the Act was to apply.”
There can, therefore, be no doubt that the expression “rules of evidence” construed in
the light of the Indian legal and legislative history would include some rules of
conclusive proof and if that is so, it would be idle to contend that the impugned rule is
a part of the substantive law merely because it prescribes a conclusive presumption. If
that be the true position, we do not think we would be justified in construing the
words “rules of evidence” to adopt the academic or pedantic approach suggested by
the petitioners. The expression “rules of evidence” would certainly include a rule as to
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conclusive presumption like the one with which we are concerned in the present
petitions. Therefore, on this construction of Section 9(2), the impugned rule must be
held to be intra vires.
37. The question about the validity of this rule has been considered by some of the
High Courts in India. The Andhra Pradesh16 and Allahabad High Courts17 have held
that the rule is invalid, whereas the Bombay.18 the Rajasthan19 and the Madras High
Courts20 have held that the rule is valid.
38. The next point to consider is about the validity of Section 9(2) itself. It is
argued that this rule is ultra vires because it affects the status of citizenship conferred
on the petitioners and recognised by the relevant articles of the Constitution, and it is
urged that by depriving the petitioners of the status of citizenship, their fundamental
rights under Article 19 generally and particularly the right guaranteed by Article 19(1)
(e) are affected. It is not easy to appreciate this argument. As we have already
observed, the scheme of the relevant articles of Part II which deals with citizenship
clearly suggests that the status of citizenship can be adversely affected by a statute
made by the Parliament in exercise of its legislative powers. It may prima facie sound
somewhat surprising, but it is nevertheless true, that though the citizens of India are
guaranteed the fundamental rights specified in Article 19 of the Constitution, the
status of citizenship on which the existence or continuance of the said rights rests is
itself not one of the fundamental rights guaranteed to anyone. If a law is properly
passed by the Parliament affecting the status of citizenship of any citizens in the
country, it can be no challenge to the validity of the said law that it affects the
fundamental rights of those whose citizenship is thereby terminated. Article 19
proceeds on the assumption that the person who claims the rights guaranteed by it is
a citizen of India. If the basic status of citizenship is validly terminated by a
Parliamentary statute, the person whose citizenship is terminated has no right to claim
the fundamental rights under Article 19. Therefore, in our opinion, the challenge to
Section 9(2) on the ground that it enables the rule-making authority to make a rule to
deprive the citizenship rights of the petitioners cannot be sustained.
39. That leaves only one point to be considered in the petitioners' attack against
the validity of Section 9(2). It is urged that Section 9(2) confers on the Central
Government uncanalised and arbitrary power to make rules without a guidance and as
such it amounts to excessive delegation. In our opinion, the is no substance in this
argument. Section 9(1) has itself provided that if Indian citizen applies for
naturalisation in a foreign State and obtains such naturalisation, he will be deemed to
have lost the citizenship of India. The same provision is made in regard to registration.
The Legislature knew that the acquisition of the citizenship of a foreign State may be
made voluntary even otherwise than by naturalisation or registration and so it has
provided the third category of acquisition of foreign citizenship under the last claim
“otherwise voluntarily acquires” so that rule-making had to be confirmed primarily to
this last category of acquisition of foreign citizenship. The basic principle on which the
Act proceeds and which has been recognised by Article 9 of the Constitution itself is
that no Indian citizen can claim a dual or plural citizenship. The acquisition of foreign
citizenship can be made by naturalisation or registration and as soon as it is so made,
the prior Indian citizenship is terminated. It is in the light of these principles which
are writ large on the provisions of the Act that the rule-making power had to make
rules about class of cases falling under the last category of acquisition of foreign
citizenship and the rules show how the task has been attempted. We have already
refered to Rule 1 to 3. Rules 4 and 5 which deal with cases other than those where
passport has been obtained by an Indian citizen, prescribe the relevant factors we
have to be considered in each case before deciding whether foreign citizenship has
been acquired by an Indian or not and the impugned Rule 3 itself proceeds on the
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basis that the conditions prescribed by the Pakistan Law for obtaining passport from
the Pakistan Government take the case of the obtaining of the passport very near to
the case of registration or naturalisation. Therefore having regard to the scheme of the
Act and the principles enunciated in relevant sections, we do not think that it can be
held that in enacting Section 9(2), the Legislature has abdicated its essential
legislative function in favour of the rule-making authority. That is why our conclusion
is that Section 9(2) is valid.
40. In the result, the petitions fail and are dismissed. There would be no order as to
costs.
K.C. DAS GUPTA, J.— These three petitions raise common questions of law and have
therefore been heard together. As the questions that arise are of law and the facts are
not in dispute and substantially the same, it would be convenient to deal with the
facts of one of these petitions only. We propose to take for this purpose WP No. 88 of
1961.
42. The petitioner Habib Hidayatullah claims to be a citizen of India and has filed
this petition for protection of his fundamental right under Article 19 of the Constitution
which he says is threatened by the action of the Union of India and the State of
Maharashtra. It is not disputed that the petitioner was on January 26, 1950, a citizen
of India and obtained a Haj passport for pilgrimage in that capacity. According to him
he sailed from Bombay for Basra (Iraq) on April 5, 1950 and stayed there for three
years in connection with some business and then went to Karachi on May 2, 1953,
with his brother for the latter's treatment. On his arrival at Karachi the Pakistan
authorities took away his Indian travel documents. During the years 1954, 1955, 1956
and 1957 he made several attempts to obtain facilities from the Indian High
Commission at Karachi for his return to India. But having failed to get any assistance
there he obtained a Pakistan passport and travelled to India on the basis of the same.
This was obtained on December 14, 1957 and the petitioner's case is that he obtained
it as this was the only possible way for him to return home to with his ailing brother
and without any intention to renounce his Indian citizenship or to acquire Pakistani
citizenship. After his return to India the petitioner made several representations to the
Indian authorities asking them “to recognize him as a citizen of India and/or to
register him as such and/or to permit him to stay permanently in India”. But
ultimately the Indian authorities refused to recognise him as a citizen of India and/or
to permit him to stay permanently in India.
43. Faced now with the risk of being deported from India the petitioner has
approached this Court for an order directing the respondents, the Union of India and
the State of Maharashtra to refrain from taking any steps to deport or remove him
from India and to recognise him as a citizen of India by birth under Article 5(1)(a) of
the Constitution.
44. When admitting this writ petition after the preliminary hearing this Court made
an order stating that it would be open to the petitioner to move the Government under
Section 9(2) of the Citizenship Act or the Government suo motu to take action under
it.
45. Thereafter both the respondents have entered appearance and oppose the
petition for stay on the ground that the petitioner has ceased to be a citizen of India.
The Government of India then took action under Section 9(2) of the Citizenship Act
and has determined that the petitioner has voluntarily acquired the citizenship of
Pakistan after January 26, 1950 and before December 14, 1957.
46. The order made by the Government of India shows that in reaching the above
conclusions it took into consideration, among other things, the fact that “the petitioner
by declaring himself to be a citizen of Pakistan before the Pakistani authorities …
obtained a passport on the 14th December, 1957.”
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Section 9 of the Citizenship Act runs thus:
“Any citizen of India who by naturalization, registration or otherwise volutarily
acquires, or has at any such time between the 26th January, 1950 and the
commencement of this Act voluntarily acquired the citizenship of another country
shall, upon such acquisition or, as the case may be, such commencement, cease to
be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who,
during any war in which India may be engaged, voluntarily acquires the citizenship
of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether when or how any person has acquired
the citizenship of another country, it shall be determined by such Authority, in such
manner, and having regard to such rules of evidence, as may be prescribed in this
behalf.”
47. Rule 30 of the Citizenship Rules, 1956, framed by the Central Government
under Section 18 of the Citizenship Act, 1955, (Act 57 of 1955) provides: (1) that if
any question arises as to whether, when or how any person has acquired the
citizenship of another country, the authority to determine such question shall, for the
purposes of Section 9(2) be the Central Government; and (2) the Central Government
shall in determining any such question have due regard to the rules of evidence
specified in Schedule III. Schedule III contains five rules of which Rule 3 runs thus:—
“The fact that a citizen of India has obtained on any date a passport from the
Government of any other country shall be conclusive proof of his having voluntarily
acquired the citizenship of that country before that date.”
48. There can be no dispute that if the order of the Central Government
determining that the petitioner has voluntarily acquired the citizenship of Pakistan
after the 26th January, 1950, is a valid order in accordance with Section 9(2) the
petitioner has under the provisions of section 9(1) of the Citizenship Act ceased to be
a citizen of India and his petition must accordingly fail. It has been urged before us
however that this determination of the Government has no legal force inasmuch as it
was made on the basis of Rule 3 of Schedule III of the Citizenship Rules, which Rule
itself is invalid.
49. The principal question canvassed before us is as regards the validity of this
rule. The main attack against the rule is that while Section 9(2) empowers the
Government to prescribe rules of evidence, Rule 3 is not a rule of evidence but a rule
of substantive law and is therefore beyond the limits of the powers which were
delegated to the rule-making authority by the legislature.
50. The contention on behalf of the petitioner is that a distinction must be drawn
between a rule of evidence, properly so called and a rule which though called a rule of
evidence lays down a rule of substantive law; and that if that distinction is borne in
mind it becomes clear that Rule 3 is not a rule of evidence. The other argument is that
when any fact is stated by a rule to be conclusive proof of another fact, the rule is in
effect laying down that the happening of the first fact will be equivalent in law to the
happening of the other fact and so a party interested to prove the falsity of such other
fact is being prevented from giving relevant evidence.
51. Every law has something to do with the function of the State in securing rights
to and imposing liabilities on its people. While however some of the laws deal primarily
with the creation, modification or extinguishment of rights or liabilities, other laws deal
with the further task that then becomes necessary of ascertaining how far in any
particular case, such rights or liabilities have come into existence, or have become
destroyed. For clarity of thought, and convenience of discussion, the laws falling in the
former class are called substantive laws while those in the second class are called
adjective laws. Adjective laws again have two branches, one dealing with the
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procedure of the courts; and the other (which is also in the strict sense “procedure”)
rules of evidence. The distinction between substantive law and adjective law is well
understood in jurisprudence, though some amount of confusion has occasionally been
caused by some writers losing sight of the distinction. As early as the beginning of the
nineteenth century Bentham criticised in his Rationale of Judicial Evidence the
tendency of many writers to present rules of civil law and criminal law as rules of
evidence. “What, therefore, the lawyers give us, under the appellation” law of
evidence, says Bentham, “is really, in a great part of it, civil and penal law”. Since
Bentham's time much progress has been made in this matter and many jurists of
eminence have emphasised the distinction between rules of evidence properly so
called and rules which in the guise of rules of evidence are really rules of substantial
law. Mr Justice Holmes in his Common Law says: “If the Court should rule that certain
acts or omissions coupled with damage were conclusive evidence of negligence unless
explained, it would, in substance and in truth, rule that such acts or omissions were a
ground of liability or prevented a recovery, as the case might be. “It is then
fundamental”, says Professor Thayer, in his Preliminary Treatise on Evidence, “that not
all determinations admitting or excluding evidence are referable to the law of
evidence. For the larger part of them are not”. Permitting a fact, says Professor
Wigmore in his Treatise on Evidence, “to become a proposition is not an evidentiary
process”, and gives the following example: “An action of battery upon a plea of not
guilty, the defendant offers evidence to prove that the plaintiff used insulting words to
the defendant before the attack, and this is rejected; here the ruling is in truth that
insults constitute no excuse or no ground for mitigation of damages, a rule of
substantive law; or perhaps, that such a defence is not available upon a plea
traversing the battery — a rule of pleading. It is certainly not a ruling upon a question
of evidence; it is a ruling that the proposition desired to be proved is either not
tenable, by the substantive law, or not issuable, by the law of pleading.”
52. This reasoning is obviously at the basis of Wigmore's view in Section 2492, Vol.
9 of the same treatise that rules laying down conclusive presumptions arc really rules
of substantive law. “In strictness”, says he, “there cannot be such a thing as a
“conclusive presumption”. Wherever from one fact another is said to be conclusively,
presumed in the sense that the opponent is absolutely precluded from showing by any
evidence that the second fact does not exist, the rule is really providing that, where
the first fact is shown to exist, the second fact's existence is wholly immaterial for the
purpose of the proponent's case; and to provide this is to make a substantive law and
not a rule apportioning the burden of persuading as to certain propositions or varying
the duty of coming forward with evidence.”
53. The same view has been expressed by Prof. Holdsworth in his History of English
Law. At p. 139, Vol. 9, of this history, he, after tracing how presumptions have been
evolved by the Courts or the legislature, proceeds to say: “In this way the law as to
presumptions of different kinds comes to contain a confused and heterogeneous mass
of rules, relating to many different legal topics. Insofar as the courts or the legislature
treat these presumptions as conclusive, they cannot at the present day be regarded as
parts of the law of evidence”. They are rather rules of substantive law. Again at p. 143,
the learned author after stating that rebuttable presumptions of law though belonging
primarily to those particular branches of the substantive law with which they are
concerned, are all connected with that part of the adjective law which is concerned
with evidence, observes: “Irrebuttable presumptions of law, on the other hand, belong
at the present day more properly to the substantive law than to the law of evidence.
But they are rules of substantive law which borrow the terminology and adopt the
guise of that branch of the law of evidence which is concerned with presumptions;
and, historically, they originate in the period when the law, not having arrived at the
conception of a trial by the examination of the evidence produced by the contending
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parties, aimed at obtaining a conclusive proof which could settle the controversy. It
might therefore be said that these irrebuttable presumptions have never been part of
the law of evidence, in the sense which we give to the term “law of evidence” in
modern systems of law.
54. While both Wigmore and Holdsworth seem to regard all conclusive
presumptions as rules of substantive law, Phipson in his Law of Evidence says, more
guardedly, that many of such conclusive presumptions are rules of substantive law. At
p. 698 of his book the learned author says: “In many cases these so-called conclusive
presumptions are rules which belong, properly speaking, to the various branches of
substantive law and not to the law of evidence, such as the presumption that an infant
under seven is incapable of committing a felony, or that all men know the law (i.e.
that ignorance of the law is no excuse for crime)”. He then gives several instances of
matters which are conclusive presumptions or amount to conclusive evidence, either
by statute or common law. But unlike Wigmore and Holdsworth, he does not say that
all rules of conclusive presumptions are rules of substantive law.
55. The matter has been critically considered again by Sir James Stephen in his
Digest of the Law of Evidence. After stating first (p. 13) that all law may be divided
into substantive law, by which rights, duties and liabilities are defined, and the law of
procedure, by which the substantive law is applied to particular cases, Stephen says
that the law of evidence is that part of the law of procedure, which, with a view to
ascertain individual rights and liabilities in particular cases, decides: (i) What facts
may, and what may not be proved in such cases; (ii) what sort of evidence must be
given of a fact which may be proved and (iii) by whom and in what manner the
evidence must be produced by which any fact is to be proved”. Speaking of
presumptions, he says at p. 17 Again, I have dealt very shortly with the whole subject
of presumptions. My reason is that they also appear to me to belong to different
branches of the substantive law, and to be unintelligible, except in connection with
them. Take for instance the presumption that every one knows the law. The real
meaning of this is that, speaking generally, ignorance of the law is not taken as an
excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part
of the law of evidence. It belongs to the Criminal law. In the same way numerous
presumptions as to rights of property (in particular easements and incorporeal
hereditaments) belong not to the law of evidence but to the law of Real Property”.
After saying this, the learned author proceeds to distinguish certain conclusive
presumptions which in his opinion, may rightly be considered to form part of the law
of evidence and observes: “The only presumptions, which in my opinion, ought to find
a place in the law of evidence, are those which relate to facts merely as facts, and
apart from the particular rights which they constitute. Thus the rule, that a man not
heard of for seven years is presumed to be dead, might be equally applicable to a
dispute as to the validity of the marriage, an action of ejectment by a reversioner
against a tenant pur autre vie, the admissibility of a declaration against interest, and
many other subjects. After careful consideration, I have put a few presumptions of this
kind into a Chapter on the subject, and have passed over the rest as belonging to
different branches of the substantive law”. Rules of conclusive presumptions as
regards fact which may help to constitute rights in different branches of substantive
law may thus, according to Stephen, be considered as rules of evidence. It is
unnecessary for us to decide for the purposes of the present case whether every rule
that one fact is conclusive proof of another is a rule of substantive law. It is clear
however that whenever the question arises as to whether a particular rule is one of
substantive law, or of evidence, we have to ask ourselves-does it seek to create, or
extinguish or modify a right or liability or does it concern itself with the adjective
function of reaching a conclusion as to what has taken place under the substantive
law? In the first case, the rule is a rule of substantive law; in the other case, it is a
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rule of evidence.
56. For, a rule of evidence, can be concerned only with the manner and extent of
presentation of facts, for the purpose of persuading the mind of the Judge or jury or
other Tribunal of the existence, or non-existence of facts on which substantive rights
or liabilities, civil or criminal arise. It has nothing to do with giving an answer to the
question: What is the right or a liability which arises on the happening of a fact? If a
rule, purporting to be a rule of evidence does in effect give such an answer, it has
gone beyond the scope of the law of evidence and has trenched on the domain of
substantive law.
57. On behalf of the respondent it was contended that even though a rule laying
down that one fact will be conclusive proof of another might be said to be a rule of
substantive law if the former fact was wholly irrelevant in persuading a rational human
mind about the existence of the other, the position is different when the former fact is
relevant “in the sense of having some persuasive value on the mind according to
ordinary process of reasoning. All that happens, it is urged, when such a “relevant”
fact is laid down by a rule to be conclusive proof of the fact to be proved is that its
persuasive value is stated by law to be hundred per cent though otherwise it would
have been of a lower percentage. Such a rule according to the dependants ought to be
regarded as a rule of evidence just as a rule stating merely that a fact is relevant i.e. it
has some persuasive value, is always regarded as a rule of evidence. The argument
appears to us to be wholly misconceived. Indeed, it appears to be based on a
misunderstanding of what the law of evidence does. It does not instruct the Judge as
to what value an item has or ought to have. Its task is, apart from saying on whom
the burden of proof would lie and the mode in which, documents and oral evidence will
be allowed to be presented to the Tribunal, to select some of the innumerable facts
which according to the ordinary process of reasoning have — some more, some less —
an effect on the human mind in persuading it of the existence of other facts, which
tend to create, extinguish or modify a right or a liability — as matters of which
evidence will be allowed to be given. When a rule says that a fact is relevant for
proving a fact in issue, it is merely saying that the Court will allow evidence to be
given of it. When however the rule goes further and says that this relevant fact will be
conclusive proof of a fact in issue so that a specified right or liability may arise from it,
what is being done is to directly affect substantive right or liability and is not providing
for evidence only. A rule of conclusive presumption made with a view to affect a
specified substantive right is a rule of substantive law as it is intended to affect
substantive right and does not cease to be so because the conclusive presumption,
that is, conclusive proof of the existence of another fact, is rested on a fact which is
relevant to it. The point is not relevancy but whether the rule is intended to affect a
specified substantive right or to provide a method of proof. Where the purpose of a
rule of conclusive presumption is that the Judge should on that basis hold that a
specified right or liability exists, or does not exist, the rule is really saying that this
particular relevant fact will create, or extinguish or modify the right or liability. The
substance of the matter then is that a rule of conclusive presumption as to the
existence of a certain fact only for establishing or disestablishing a specified
substantive right results in affecting that right and ceases to be a rule of proof.
58. It was also said that estoppel, which is really a rule of conclusive presumption,
has invariably been treated as a branch of the law of evidence. Suppose this is so.
Does that prove that all rules of conclusive presumption are rules of evidence? We
have already said that some may be. Estoppels may belong to that class. “There is
said to be an estoppel where a party is not allowed to say that a certain statement of
fact is untrue, whether in reality it is true or not”: Halsbury's Laws of England, 3rd
Edn. Vol. 15, p. 168. It therefore is concerned with a statement of fact; it is not
directed to affect any particular right though no doubt ultimately all estoppels do
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affect some rights as all rules of evidence do. Insofar as estoppels, whether treated as
rules of conclusive presumption or not, are not intented to affect substantive rights,
they are rules of evidence. Therefore it seems to us that the contention that estoppel
is a rule of evidence does not establish that all rules of conclusive presumption are
rules of evidence.
59. Let us come now to the impugned rule. It lays down that the fact that a citizen
of India has obtained on any date a passport from the Government of another country
shall be conclusive proof of his having voluntarily acquired the citizenship of that
country before that date. Section 9 of the Citizenship Act (Act 57 of 1955) provides
that any citizen of India who by naturalisation, registration or otherwise voluntarily
acquires or has at any time between 26th January, 1950, and the commencement of
the Act voluntarily acquired the citizenship of another country shall upon such
acquisition or as the case may be, such commencement cease to be a citizen of India.
This provision in Section 9 is undoubtedly a substantive law laying down inter alia that
the fact of voluntary acquisition of citizenship of another country by a citizen of India
will extinguish his right of citizenship of India. Under sub-section 2 of Section 9 the
question whether a person has acquired citizenship of another country shall be
determined, by a prescribed authority which shall have regard to prescribed rules of
evidence. Ordinarily such rules of evidence would, as already indicated above, be
dealing with the question of the burden of proof, as to the mode of presentation of
evidence, as to the rights of examination and cross-examination and would also select
some of the facts which may have a persuasive value as facts of which evidence can
be given. In dealing with the question of burden of proof the rules may also
legitimately raise a rebuttable presumption, from certain facts, of this fact of voluntary
acquisition of citizenship of another country. A rule raising a rebuttable presumption is
clearly a rule of evidence for its only effect is to shift the onus of proof and it is not
intended to affect nor does it affect any particular substantive right. In determining
the question the prescribed authority would then have to consider the facts which tend
to persuade the mind that the person has voluntarily acquired the citizenship of
another country and also facts which tend to show the other way, provided the
presentation of these is not barred by the prescribed rules of evidence. What happens
when the rule-making authority steps in with the rule that the obtaining of a passport
of another country will be conclusive proof of the fact of voluntary acquisition of
citizenship of another country? Under Section 9 the fact of voluntary acquisition of
citizenship of another country results in the extinction of his right as an Indian citizen.
The rule therefore directly affects a substantive right and, in the context of Section 9,
must be taken to have been intended to do so. Such a rule cannot obviously be a rule
of evidence; it is clearly a rule of substantive law.
60. Under the law as laid down in the impugned rule the fact of obtaining a foreign
passport will have this result, even though it may very well be that though he has
voluntarily acquired such a passport he has not thereby, or for that purpose acquired
the citizenship of another country. This may happen for instance, when a person who
is a citizen of India by reason of descent, but is at the same time a citizen of another
country, say, France, by birth, obtains a passport from the French authorities. Again,
each country is of course free to make its own laws. Suppose a foreign country makes
a law under which it can issue a passport to one who is not its national. If an Indian
takes such a passport, he does not under the law of that country become its national
but under the rule now being considered, he is to be taken as a foreign national. The
obtaining of such a passport in either case cannot under the ordinary process of
reasoning have any value whatsoever to show that he has voluntarily acquired foreign
citizenship. Yet, under the impugned rule a passport so obtained by an Indian national
will extinguish his right of citizenship of India. Clearly, therefore, the impugned rule is
a rule of substantive law as distinct from a rule of evidence.
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61. As a last attempt to save the rule it was argued on behalf of the respondent
that it is not really a rule of irrebuttable presumption. It is pointed out that Rule 30(2)
lays down that the Central Government shall in determining the question whether,
when or how a person has acquired the citizenship of another country “have due
regard to” the rules of evidence specified in Schedule III. The effect of the words
“shall have due regard to”, it is urged, is that the Central Government would have
normally to take these rules into account but was not strictly bound to do so. Reliance
was placed for this contention on the observations of Viscount Simon in Ryots of
Garabandho v. Zamindar of Parlaki-madi21 . That authority appears to us to be of no
avail for the interpretation of the worth “shall have due regard to” in the present case.
The effect of the words shall have due regard to will necessarily be different in
different contexts. The present context is that the deciding authority is directed to
have due regard to a rule that one fact will be conclusive proof of another. It is idle to
contend that in this context the deciding authority will or can disregard the rule and in
the face of the fact which is said to be conclusive proof of another hold the other fact
not to have been proved.
62. It is really unnecessary however to consider the effect of the words “shall have
due regard to”, for as soon as it is held that the Rule is void because of its being
outside the powers of the rule-making authority any decision in which any regard has
been paid to the rule becomes void.
63. The question of validity of Rule 3 of Schedule III of the Citizenship Act came up
for consideration before several High Courts in India. The High Court of Madras in
Mohomed Usman v. Stats of Madras22 and the Rajasthan High Court, in Ghaural Hasan
v. State of Rajasthan23 held the Rule to be valid; while the Andhra Pradesh High Court
in Mohd. Khan v. Govt. of Andhra Pradesh24 and the Allahabad High Court in Sharafat
Ali Khan v. State of U.P.25 held the Rule to be void. For the reasons mentioned earlier
we are of opinion that the view taken by the Andhra High Court and the Allahahad
High Court is correct.
64. The necessary consequence of our conclusion that Rule 3 Schedule III of the
Citizenship Rules is void is that the determination of the Central Government that the
petitioner has voluntarily acquired the citizenship of Pakistan after 26th January, 1950
and before 14th December, 1957, has no legal validity.
65. Two other contentions have now to be noticed. First, it is said that Section 9
itself offends the Constitution as it takes away rights of citizenship. It is sufficient to
dispose of this point to say that, if citizenship is a fundamental right, as to which
doubts may legitimately be entertained, Article 11 authorises Parliament to make any
provision with regard to acquision and termination of citizenship. Section 9 is thus
clearly within this article. It was next said that Section 9(2) gives unguided power to
the Government and is therefore bad as it really amounts to an abdication of
Parliament's power of legislation under Article 11. We are unable to see that Section 9
(2) gives any unguided power. It first gives the Government the power to provide an
authority to decide the question whether a person has acquired foreign citizenship.
This gives really no power of subordinate legislation but only empowers the
Government to constitute an authority for deciding a question which the section itself
requires, should be decided. So far as the sub-section gives power to frame rules of
evidence, we think there is enough guidance provided. All that the Goverment is
empowered to do is to frame rules of evidence. Whatever difficulty there may be in
deciding whether a particular rule is of evidence or not, there is no vagueness about
the power given. It is clear cut and limited, for the power is to make rules of evidence
and nothing else. If that power is exceeded, then, as in our view has happened in this
case, the exercise of the power becomes bad. The difficulty, if any, in deciding what is
a rule of evidence, cannot make a power to frame rules of evidence vague or too wide.
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66. For the disposal of the present petitions in the view that we have taken
however, it is necessary that the question whether the petitioners have acquired
foreign nationality should be considered and determined by the Central Government in
accordance with law. We would therefore direct the Central Government to decide the
question whether the petitioner have voluntarily acquired the citizenship of Pakistan
after 26th January, 1950, in accordance with law, leaving out of account Rule 3 of
Schedule III of the Citizenship Rules, 1956, and on receipt of the result of the enquiry
we would proceed with the further hearing of these petitions.
Order
67. In accordance with the decision of the majority, the petitions fail and are
dismissed. There will be no order as to costs.
———
* (Under Article 32 of the Constitution of India for enforcement of Fundamental Rights).
1 The Principles of the Law of Evidence Twelfth Edn, p. 6, 23, 25 and 267.
2
Holdsworth on A History of English Law 1926 Vol. 9, p. 143-144.
3 Wigmore on Evidence, 9th Edn, p. 292, para. 2492
4 Phipson on Evidence, 9th Edn, p. 698.
5
Stephen's Digest of the Law of Evidence, p. 27
6 Dicey's Conflict of Laws, Seventh Edn. p. 1098
7 Thayer's A Preliminary Treatise on Evidence at the Common Law, p. 314
8
76 Law Ed p. 772-80
9 (1905) 2 KB 730
10 (1946) AC 347
11
P. Weis on ‘Nationality and Statelessness in International Law’ p. 225-226.
12 9 Law Ed p. 690
13 1945 Chancery Division p 5
14
1933 AC 156 at p. 165
15 1939 FCR 18 at p. 53
16 AIR 1957 Andhra 1047
17
AIR 1960 Allahabad 637
18 AIR 1958 Bombay 1422
19 AIR 1958 Rajasthan 172
20
AIR 1961 Madras 129
21 70 IA 129 at p 168
22 AIR (1961) Mad 129
23
AIR (1958) Raj 173
24 AIR (1957) Andhra 1047
25 AIR (1960) All 637

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